SC Emissions Ruling Spurs Fast and Furious Reactions

By Erika Morphy
Apr 4, 2007 3:04 PM PT

It didn't take long for the U.S.
EPA to react to the Supreme Court's Massachusetts v. Environmental Protection Agency ruling.

The agency announced that California can move forward with its plans to reduce tailpipe emissions from cars, light trucks and sport utility vehicles -- in effect, setting the nation's first standards in this area. Prior to the Supreme Court ruling, the EPA had argued that the authority to set fuel economy standards belonged solely to the U.S. Department of Transportation.

In related news, there is talk that a lawsuit automakers have filed against states that have adopted California's greenhouse gas restrictions for vehicles may soon be dismissed.

Indeed, ramifications of the Supreme Court decision will extend far beyond the parties closest to the case. Yes, environmentalists received a major boost with the ruling, and true, the Bush administration is steaming over the rebuff to its approach to global warming. There are other winners and losers as well. First, we'll take a look at some of the presumed victors.

State's Standing

The states are obvious winners, as they now have far greater latitude to set their own emissions standards. However, this case also will give them "standing" -- that is, the right to take certain issues to court -- in other matters.

"A majority of the Supreme Court found that the matter was properly before the court, relying on the standing of Massachusetts with respect to the impact global warming plays on the loss of its coastal land," Eric E. Boyd, partner in Seyfarth Shaw's environmental, safety and toxic torts practice group, told TechNewsWorld.

"This means the states are big winners on the standing issue. The court essentially came out with a new standing doctrine," he said.

Justice Stevens was able to pull together a 5-to-4 majority, Boyd continued, only because he was able to get Justice Kennedy on board by making the distinction between states and other complainants with respect to standing.

"If you read Chief Justice Roberts' dissent, you can see it is a big issue for him," Boyd said. "He sees it as a big rollback."

Essentially, the threshold for standing is now lower for states than for other complainants as a consequence of the ruling, he said.

In theory, this ruling could give more power to the states to challenge the federal government's actions in any area now that the majority of the Court has said the states are held to a lesser standard when it comes to standing, Scott Deatherage, an attorney with Thompson Knight, told TechNewsWorld.

The Clean Air Act

The Clean Air Act is also a winner in this tussle, having been cited by the Supreme Court as the necessary standard on which the EPA needs to base its decision-making.

The Act also received a boost in another less-visible case: The justices vacated a Fourth Circuit Court of Appeals decision that had derailed major Clean Air Act enforcement cases against Duke Energy and other utilities, according to the Southern Environmental Law Center. The Court overturned the appellate court's 2005 test for measuring emissions when overhauled coal-fired power plants become "new" sources that must get air pollution controls or shut down.

In a 9-to-0 ruling, the Supreme Court held that the Fourth Circuit overstepped its bounds by striking down the clean air regulations that environmental groups and the EPA sought to enforce, the Center said. The regulations are part of the Clean Air Act's New Source Review (NSR) program, which requires the largest polluters to install modern pollution controls when overhauling facilities in a way that results in increased emissions.

In Massachusetts v. Environmental Protection Agency, "the majority found that carbon dioxide is a pollutant, and that the EPA's grounds in rejecting the petition were faulty," Seyfarth Shaw's Boyd said.

"The Clean Air Act has again been interpreted broadly by the Supreme Court to permit wide-ranging environmentally focused programs that related to air pollution," Norman W. Spindel, an attorney with Lowenstein Sandler, told TechNewsWorld.

However some environmentalists may push to supplement the Clean Air Act.

"As of now, the way we deal with climate change is through the Clean Air Act -- which is not the most effective way, in my opinion," Kevin Healy, a partner in the New York office of Bryan Cave, told TechNewsWorld.

It could take a decade to get the point where there are appropriate standards, he said.

Pressure resulting from this ruling on the Bush administration is likely to lead to additional legislation -- or, less likely, some changes to the statute to more directly address climate change, Healy predicted.